PATRIOT CONTRACTING LLC v. HERC SOLUTIONS USA LLC LP (2026)

OPINION

This is a commercial construction dispute involving principally breach of contract and tortious interference claims. Appellants Patriot Contracting, LLC, Stephen J. Friedman, and Travelers Casualty and Surety Company of America appeal from a judgment following a jury trial in favor of appellees Mid-Main Properties, LP, HERC Solutions USA, LLC, and Scaffold Solutions, Inc. Mid-Main also cross-appeals against Patriot. Combined, the parties assert twenty-one issues.

With one exception, we reject the parties' issues that would require rendition of judgment, as we detail below. However, we sustain Friedman's legal sufficiency challenge to the jury's finding that he intentionally interfered with Mid-Main's potential financing relationship with Amegy Bank, and we render judgment dismissing that claim, as well as the exemplary damages associated with it.

We further hold that certain evidence, witness questions, and jury arguments by Mid-Main, HERC, and Scaffold improperly injected inflammatory matters into the trial proceedings. These unprovoked arguments were so prejudicial that we conclude their harmfulness is incurable, thus warranting a new trial. See Alonzo v. John, 689 S.W.3d 911, 913 (Tex. 2024) (per curiam); Living Cntrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678, 680-81 (Tex. 2008) (per curiam); Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 838-40 (Tex. 1979).

We reverse and render in part, and we reverse and remand in part for proceedings in accordance with this opinion.

Background

This dispute arises from the construction of a multi-level, mixed-use development in Houston's Midtown (the “Project”). The parties are:

• Mid-Main — Project developer and owner

• Scaffold — scaffolding subcontractor

• HERC — plumbing subcontractor

• Patriot — Project general contractor

• Friedman — Patriot's owner

• Travelers — surety that issued the performance and payment bonds

At issue are numerous contract and tort claims arising out of contracts: (1) between Mid-Main and Patriot; (2) between Patriot and HERC; and (3) between Patriot and Scaffold. The trial court submitted the following claims to a jury after a five-week trial:

• Patriot's claims against Mid-Main for breach of contract and, alternatively, quantum meruit;

• Patriot's claim against HERC for breach of contract;

• Mid-Main's claims against Patriot for breach of contract;

• Mid-Main's claims against Friedman for tortious interference and violations of the Property Code;

• Scaffold's and HERC's claims against Patriot for breach of contract; and

• Mid-Main's, HERC's, and Scaffold's claims against Travelers for breach of contract.

The jury found in favor of Mid-Main, HERC, and Scaffold, and against Patriot, Friedman, and Travelers, on all claims. The final judgment awards damages and attorney's fees to Mid-Main, HERC, and Scaffold.

The following is an overview of the relevant facts. Because many of their arguments overlap, we refer to Patriot, Friedman, and Travelers collectively as “appellants” when discussing their joint contentions.

A. Patriot versus Mid-Main

Patriot and Mid-Main contracted using standard American Institute of Architects forms, with some modifications (the “Patriot Contract”). These forms included A201, which provided the “General Conditions of the Contract for Construction,” and A103, the “Standard Form of Agreement Between Owner and Contractor.” The Patriot Contract was a cost-plus agreement, with Mid-Main agreeing to reimburse Patriot for its costs plus five percent of the costs. The A103 terms governed over any inconsistent language in the other contract documents.

Patriot submitted to Mid-Main monthly applications requesting payment (“payment application” or “PA”) for completed portions of work and its five percent fee. Once approved, Mid-Main paid the applications, withholding five percent as retainage. Under the Patriot Contract, the retainage was due upon completion, but Patriot could receive part of the retainage sooner under certain circumstances.

As work progressed, Patriot submitted PA1 through PA31, covering the cost of work and its fee through February 2017. Mid-Main paid the applications, sometimes reducing the amount sought. When Mid-Main paid PA31, it held roughly $1.6 million in total retainage. In February 2017, the City of Houston issued temporary certificates of occupancy for Tower 1, all three levels of the parking garage, and the retail space on the Project's first floor. After Patriot turned over these parts of the Project to Mid-Main, Mid-Main occupied the parking garage, leased the retail space, and leased apartments in Tower 1.

On April 5, 2017, Patriot submitted PA32, seeking $935,279.63, which, according to Patriot, represented that part of the retainage Mid-Main was withholding for the work attributed to the garage, retail space, and Tower 1. Patriot claimed that portion of the retainage was due.¹ Mid-Main refused to pay PA32 on April 19, stating that the retainage was not due until the entire Project was substantially complete. Mid-Main terminated the Patriot Contract effective April 24, and Patriot left the Project that day.

The parties disputed whether Mid-Main terminated the Patriot Contract for cause or for convenience. If terminated for cause, the contract provided the following regarding payment:

§ 14.2.3 When the Owner terminates the Contract for [cause], the Contractor shall not be entitled to receive further payment until the Work is finished.

§ 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's and of Owner's services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This obligation for payment shall survive termination of the Contract.

On the other hand, if Mid-Main terminated the Patriot Contract for convenience, Patriot was “entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work which was executed, but not otherwise.”

When Mid-Main terminated the contract, the Project was approximately 93% complete. Mid-Main completed the Project in February 2018.

In 2017, before the Project was completed, Patriot sued Mid-Main to recover the unpaid balance for the work it had performed before Mid-Main terminated the Patriot Contract. At trial in 2023, Patriot argued that Mid-Main breached the contract when it rejected PA32, then terminated the contract for convenience because it ran out of money. Patriot sought to recover the unpaid amounts under PA32 (approximately $935,000 in retainage), PA33 (approximately $2.1 million for work performed in March 2017), PA34 (approximately $2.3 million for work performed before termination in April 2017), and PA35 (approximately $832,000 for the remaining retainage).² Alternatively, Patriot sought to recover in quantum meruit.

Mid-Main, on the other hand, argued that Patriot breached the contract by failing to: (1) properly supervise the construction; (2) timely pay subcontractors; (3) prevent subcontractors from filing liens; and (4) finish construction. Mid-Main sought $8.1 million in direct damages for the “reasonable and necessary cost to complete the Project” after Patriot left.³ Mid-Main also sought consequential damages of: (1) lost rent allegedly caused by Patriot's breach, which delayed the Project's completion; (2) additional interest Mid-Main paid on its construction loans; and (3) payments for an indemnification bond addressing Patriot's (and other subcontractors') liens against the Project.

The jury found that Patriot breached the contract, that Mid-Main did not breach the contract, and that Mid-Main terminated for cause. The jury awarded Mid-Main over $6.2 million in damages as the “reasonable and necessary costs to complete the Project.” The jury additionally awarded Mid-Main consequential damages of: (1) $573,983 for lost rent; (2) $439,961 for “Mid-Main's additional interest”; and (3) $537,855 for “Mid-Main's yearly payments for a bond addressing Patriot's lien.” The jury also awarded Mid-Main attorney's fees.

In the final judgment, however, the trial court reduced the direct and consequential damages found by the jury. First, the court reduced the direct damages Patriot owed Mid-Main to $1.942 million, which the court computed by subtracting the amount that Mid-Main would have been obligated to pay Patriot to complete the Project from the amount the jury found was Mid-Main's total cost to complete after Patriot left. Additionally, the trial court eliminated the jury's consequential damages findings for lost rent and additional interest but included the $537,855 award for bond payments.

B. Scaffold versus Patriot

Patriot subcontracted with Scaffold for scaffolding (the “Scaffold Subcontract”). Scaffold sued Patriot for breach of this contract, contending that Patriot failed to pay for scaffolding and related services for which Scaffold invoiced Patriot.

According to Patriot, the Scaffold Subcontract was a lump sum contract. The Scaffold Subcontract provides that Scaffold could receive compensation in addition to the lump sum only for extra materials or work ordered by Patriot in writing or by written change orders approved by Patriot. The Scaffold Subcontract lump sum was increased to $597,110.48 through change orders. Patriot presented evidence that it paid Scaffold more than this amount, which Patriot contended meant it did not owe any more under the subcontract.

Scaffold disputed the lump sum nature of the contract, referring to its proposal, which was expressly made part of the Scaffold Subcontract and required monthly rental fees for various scaffolding equipment. Scaffold also provided copies of “T&M Timesheets” (time and material timesheets) and daily construction reports—all signed by Patriot—describing the work performed by Scaffold, which it contended sufficed to meet the contract's requirement of ordering extra materials or work in writing.

The jury found that Patriot breached the Scaffold Subcontract and awarded approximately $554,000 in damages as “amounts Scaffold invoiced Patriot for equipment, materials, and services Scaffold provided on the Project.” The final judgment is consistent with the jury's verdict.

C. HERC versus Patriot

HERC was the plumbing subcontractor on the Project until Patriot terminated HERC's subcontract in January 2017. Patriot sued HERC for breach of contract, arguing that HERC performed defective work.

HERC counterclaimed, arguing that Patriot breached the HERC subcontract by failing to pay some of HERC's invoices. HERC also claimed that Patriot misapplied funds to which HERC was a beneficiary. In the jury charge, both of these claims were tied to PA28 through PA31, for which Mid-Main paid Patriot.

The jury found in favor of HERC, awarding $600,792.16 for the unpaid invoices and the same amount in damages for misapplication of funds. The final judgment is consistent with the jury's verdict.

D. Mid-Main versus Friedman

In March 2019, Mid-Main amended its lawsuit to add third-party claims against Friedman individually. Mid-Main alleged that: (1) Friedman tortiously interfered with Mid-Main's attempt to refinance its construction loan and its “restart agreement” with an electrical subcontractor; and (2) Friedman violated Property Code section 53.085 when he signed monthly pay applications for Patriot containing material misstatements.

Shortly before trial, the trial court granted partial summary judgment in Mid-Main's favor that Friedman misrepresented facts in several pay applications in violation of the Property Code. The trial court instructed the jury that Friedman swore to inaccurate information on pay applications.

The jury found in favor of Mid-Main and awarded damages of $310,463.60 for Friedman's interference with the subcontractor agreement and $537,855 for Friedman's interference with financing claim (for “Mid-Main's yearly payments for bond addressing Patriot's lien”). The jury assessed $2.5 million and $15 million in exemplary damages, respectively, against Friedman for the tortious interference claims.⁴ The jury also awarded $537,855 for Mid-Main's Property Code claim, and for “Mid-Main's yearly payments for bond addressing Patriot's lien.”⁵ After considering the parties' post-verdict motions, the trial court held Friedman jointly and severally liable with Patriot and Travelers for the consequential damages award of $537,855. The court also reduced the exemplary damages against Friedman to approximately $1.69 million.

Issues Presented

The following is a summary of the issues presented.

Patriot:

1. Is Patriot entitled to a take-nothing judgment on Mid-Main's claim for direct damages because Mid-Main did not request a jury issue on the proper measure of damages? Even if not, does the record support any recovery for Mid-Main's “reasonable and necessary cost to complete the project”?

2. Is there legally and factually sufficient evidence to support: (a) recovery for Mid-Main's yearly payments for a bond on Patriot's lien; (b) the jury's adverse finding on Patriot's quantum meruit claim; (c) the damages award on Scaffold's claim against Patriot; and (d) the damages award on HERC's claim against Patriot?

3. Was the trial court's instruction that Friedman swore to inaccurate information an impermissible comment on the weight of the evidence?

4. Does Mid-Main's, HERC's, and Scaffold's trial misconduct—including charges of racial and gender discrimination, comparisons to Nazis and murderers, and accusations of blackmail and forgery—require a new trial on Patriot's affirmative claims against Mid-Main and HERC or on Mid-Main's, HERC's, and Scaffold's claims against Patriot?

5. Should the award of attorney's fees to appellees be reversed?

6. Does the one-satisfaction rule bar Mid-Main's recovery for breach of contract based on Mid-Main's settlement with Travelers?6

Friedman:

1. Is there legally and factually sufficient evidence of Friedman's tortious interference with Mid-Main's prospective financing relationship with Amegy Bank?

2. Does the economic loss rule bar Mid-Main's tort recovery against Friedman because Mid-Main recovered the same damages on its breach of contract claim against Patriot?

3. Does the Property Code create a private cause of action for inaccurate affidavits in monthly pay applications, as opposed to final pay applications?

4. Is the final judgment's award of nearly $1.7 million in exemplary damages correct when: (a) the underlying tortious interference claim fails as a matter of law; (b) the Property Code neither mentions nor authorizes punitive damages; or (c) exemplary damages were statutorily limited to twice the actual damages?

5. Did Mid-Main's, HERC's, and Scaffold's counsel's “incendiary” rhetoric justify a new trial?

6. Was the trial court's instruction that Friedman swore to inaccurate information an improper comment on Friedman's veracity that caused harm?

7. Under the cumulative error doctrine, does the combined impact of improper jury arguments and witness questioning require a new trial?

Travelers:⁷

1. Is a new trial required due to appellees' counsel for “bombarding” the jury with unfounded and inflammatory accusations?

2. Is there legally and factually sufficient evidence of liability and damages?

Mid-Main (cross-appeal):

1. Did the trial court err in reducing the jury's breach-of-contract damages?

Introduction

As we discuss below, we reverse and remand for a new trial based on appellees' improper injection of inflammatory matters into the trial proceedings. When reversing a trial court's judgment, our rules require us to “render the judgment that the trial court should have rendered,” except when “(a) a remand is necessary for further proceedings; or (b) the interests of justice require a remand for another trial.” Tex. R. App. P. 43.3. Thus, we first address appellants' potential rendition issues. See, e.g., Valk v. Copper Creek Distributors, Inc., 733 S.W.3d 9, 13 (Tex. 2026) (“When a party presents multiple grounds for reversal of a judgment on appeal, appellate courts must first address issues that, if meritorious, would require rendition.”); Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam).

Rendition Issues

Patriot argues it is entitled to rendition of judgment in its favor against Mid-Main because: (1) the one-satisfaction rule extinguishes Mid-Main's entitlement to judgment against Patriot; and (2) no legally sufficient evidence supports the damage awards. Both Patriot and Travelers challenge the legal sufficiency of the damages awarded for breach of the Scaffold Subcontract. Patriot and Travelers also challenge the legal sufficiency of the evidence to support the jury's award of damages on HERC's claims. Finally, Friedman contends that no legally sufficient evidence supports the jury's finding that he tortiously interfered with Mid-Main's prospective financing relationship with Amegy Bank; that the economic loss rule bars Mid-Main's tort recovery against him; and that the Property Code does not create a private cause of action for inaccurate affidavits included in monthly pay applications.

A. The One-Satisfaction Rule

While this appeal was pending, Mid-Main and Travelers settled their dispute and signed a “Release and Satisfaction of Judgment.” Patriot contends that by signing this release Mid-Main accepted “full satisfaction” of the judgment against Patriot. Mid-Main responds that the one-satisfaction rule does not bar its recovery from Patriot because that part of the judgment has not been fully satisfied and recovery of damages from Patriot would not constitute a double recovery; rather, a settlement credit is the proper remedy under these circumstances. We agree with Mid-Main.

A plaintiff is entitled to only one recovery for any damage suffered from a single injury. Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 106-07 (Tex. 2018); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000); see Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). The rule applies when defendants commit the same act and when defendants commit technically different acts that result in a single injury. See Stewart Title, 822 S.W.2d at 7.

In the context of a partial settlement or, as here, when a party that is jointly and severally liable for certain damages resolves its own liability with a judgment creditor, the one-satisfaction rule reduces or eliminates the amount a non-settling, jointly and severally liable judgment debtor must pay. See, e.g., Bay, Ltd. v. Mulvey, 686 S.W.3d 401, 406 (Tex. 2024) (“Where a party seeking recovery has previously settled, the one-satisfaction rule manifests itself in the form of a settlement credit.”); Crown Life Ins. Co., 22 S.W.3d at 391. This prevents the judgment creditor from obtaining an undeserved windfall.

The settlement and release in today's case provides in relevant part:

Judgement Debtor [Travelers] has fully satisfied such judgment, including costs of court, as to awards to Judgment Creditor [Mid-Main] from Judgment Debtor [Travelers], pursuant to a confidential settlement agreement․

Mid-Main Properties, LP releases no parties from the Judgment other than Travelers Casualty and Surety Company of America. Judgment in favor of Mid-Main Properties, LP and against Patriot Contracting, LLC or Stephen Friedman has not been satisfied.

(Emphasis added). As shown by its plain language, the settlement and release provides that only Travelers' liability under the judgment was fully satisfied, and it specifically exempts Patriot (and Friedman) from its effects. Patriot and Friedman are thus excluded from the release's scope. See, e.g., Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Ins. Co. of N. Am., 955 S.W.2d 120, 127 (Tex. App.—Houston [14th Dist.] 1997), aff'd, Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692 (Tex. 2000); cf. also Env't. Procs., Inc. v. Guidry, 282 S.W.3d 602, 624 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that brokers did not establish that insureds' claims against them were barred as a matter of law by insureds' settlements with some of the insurers because some of the settlements included language explicitly reserving claims against brokers).

In urging the contrary, Patriot relies on El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 363-64 (Tex. 1993), and Brewer & Pritchard, P.C. v. AMKO Resources Int'l, LLC, No. 14-13-00113-CV, 2014 WL 3512836, at *6 (Tex. App.—Houston [14th Dist.] July 15, 2014, no pet.) (mem. op.). Both cases are distinguishable.

In Berryman, Berryman sued both El Paso Natural Gas Co. (“El Paso”) and El Paso Development Co. (“Development”) for usury. 858 S.W.2d at 363. Berryman asserted at trial that El Paso was the alter ego of Development, and the trial court directed a verdict to that effect. Id. After the jury found that Development charged usurious interest and awarded Berryman over $6.5 million, the trial court rendered judgment against El Paso, as well as Development, based on alter ego. Id. The court of appeals affirmed the judgment against Development, but reversed and remanded as to El Paso, concluding that there was some evidence that the companies were separate entities and the jury should have decided the alter ego question. Id. After remand, Berryman and Development settled and stipulated that the payment of funds “satisfied in full those monies due from Development under the modified judgment, but did not satisfy any claims Berryman might have against El Paso.” Id. Berryman then filed new pleadings in the remanded action against El Paso, alleging that it was liable under veil-piercing or agency principles. Id. “The trial court granted El Paso's motion for summary judgment on grounds of res judicata, collateral estoppel, law of the case, and the one satisfaction rule.” Id. The court of appeals reversed, but the supreme court held that Berryman's derivative claims against El Paso were fully satisfied and released by Berryman's settlement agreement with Development. See id. at 364 (“Development paid Berryman $20,013,020.22 in full settlement of his usury damages, refund of principal paid, attorney's fees and post-judgment interest. None of these damages, for which El Paso could be derivatively liable if found to be the alter ego or principal of Development, are left unsatisfied.”). Here, in contrast, Travelers' liability to Mid-Main is not derivative of Patriot's liability; instead, the jury found that Travelers was directly liable for its failure to comply with its performance bond.

In Brewer & Pritchard, Brewer & Pritchard (“B&P”) obtained an arbitrator's award of $4.05 million against a defendant, Strategic Petroleum Investment Consultants Enterprise, Inc. (“SPICE”), but settled with that defendant for $1 million. 2014 WL 3512836, at *6. The settlement agreement stated that B&P agreed to accept the $1 million in full satisfaction of the judgment in its favor. Id. at *1. After receiving payment, B&P then sued two different defendants in a separate lawsuit, seeking to recover the difference between the judgment and the settlement amount: “ ‘Full recovery’ to B&P means that it is entitled to ․ the difference between the judgment amount and the settlement amount.” Id. at *1-2. However, this court disagreed, explaining that, in the settlement agreement with SPICE, B&P agreed to accept the settlement amount “in full satisfaction of the judgment” in B&P's favor. Thus, the SPICE settlement fully satisfied the judgment, and B&P was not entitled to “recover compensatory damages a second time for its single injury.” Id. at *6. Unlike the settlement language in Brewer & Pritchard, the language of the settlement and release in today's case states that Patriot's liability to Mid-Main under the judgment has not been fully satisfied.

Whether and to what extent Patriot may be entitled to a settlement credit on remand is a question for another day. But we hold that the one-satisfaction rule does not extinguish as a matter of law Patriot's and Friedman's joint and several liability to Mid-Main under the judgment.

B. Legal Sufficiency Challenges

Patriot, Travelers, and Friedman assert several legal sufficiency challenges to the damages. The sufficiency of the evidence is measured by the charge submitted to the jury when there is no objection or by the charge that should have been given if a proper objection was made. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 254 (Tex. 2008); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); see also Mem'l Hermann Health Sys. v. Gomez, 649 S.W.3d 415, 426 n.32 (Tex. 2022). To challenge the legal sufficiency of evidence supporting an adverse finding on an issue for which the challenging party did not have the burden of proof, the party must show that no evidence supports the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011); see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Under the no-evidence standard, evidence favorable to the verdict is credited if reasonable jurors could, and evidence contrary to the verdict is disregarded unless reasonable jurors could not. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009); see also City of Keller, 168 S.W.3d at 827.

1. Mid-Main's Direct Damages

In its first issue, Patriot contends it is “entitled to a take-nothing judgment on Mid-Main's claim for direct damages because Mid-Main deliberately chose not to request a jury issue on the proper measure of damages.”

The damages available to Mid-Main based on Patriot's breach of the Patriot Contract was the subject of extensive briefing and argument, both during and after trial. During trial, Patriot advanced a damage theory that limited Mid-Main's contract damages to the cost to complete the Project in excess of what it would have otherwise been obligated to pay Patriot had Patriot completed the work. Mid-Main, in contrast, read the contract as permitting recovery of its cost to complete the Project less any contractually specified costs owed to Patriot for the work it completed before termination. The relevant question in the jury charge asked the jury to find the “reasonable and necessary cost to complete the Project,” but it did not ask the jury to find the amount Mid-Main would have been obligated to pay Patriot to complete the Project had the contract not been terminated. Patriot did not object to the question on that basis. The jury found $6,278,892.61 as Mid-Main's direct damages. However, after extensive post-trial briefing and argument, the trial court reduced this award to $1,942,672.27. Patriot acknowledges that this reduction reflects the trial court's decision to accept Patriot's view of the available contract damages—Mid-Main's actual cost of completion less the amount Mid-Main agreed it would have paid Patriot to complete the Project. However, Patriot disagrees with the figures the trial court used and in all events contends that Mid-Main has forfeited the right to recover any direct damages for breach of contract because it submitted an incorrect damage model.

Our review of the record reveals that Mid-Main's representative, Robert Schultz, testified that Mid-Main's cost to complete was $8,550,000, although he later stated that this cost was $8,142,672.27. Schultz also testified that it would have cost Mid-Main $6.2 million to complete the Project with Patriot finishing the work. The amount of Mid-Main's damages was a matter for the jury. Even applying Patriot's proposed measure, there exists some evidence of damages in the range between $2,350,000 and $1,942.672.27, the amount the judgment awarded Mid-Main for direct damages.

We conclude Patriot has not shown entitlement to rendition of judgment for the reason it advances because, even assuming Mid-Main's damage question failed to appropriately frame the damages issue, Patriot did not object to the omission and some evidence supports an affirmative damage finding. See Schwarz-Jordan, Inc. of Houston v. Delisle Constr. Co., 569 S.W.2d 878, 881-82 (Tex. 1978) (stating that rendition of judgment was inappropriate where there was evidence to support trial court's damages award); Am. Akaushi Ass'n, Inc. v. Twinwood Cattle Co., — S.W.3d—, 2025 WL 450750, at *33-34 (Tex. App.—Houston [14th Dist.] Feb. 11, 2025, pet. denied) (“We conclude the evidence is legally sufficient to support a damage award for breach of contract under the Second Breach Theory and that appellants have not shown entitlement to rendition of judgment on this basis.”). Because there is some evidence of damages even assuming Patriot's proposed measure is accurate, this issue does not support rendition of judgment in Patriot's favor. See Am. Akaushi Ass'n, 2025 WL 450750, at *33-34. We express no opinion on the correct measure of damages.

2. Mid-Main's Consequential Damages

In its second issue, Patriot argues that there is no evidence to support Mid-Main's consequential damages of $537,855 for yearly payments for a bond addressing Patriot's lien. Specifically, Patriot urges that these consequential damages “are not directly traceable to Patriot's purported contractual breaches and were not foreseeable at the time Patriot and Mid-Main entered into the Contract.”

Consequential damages “are those damages that result naturally, but not necessarily, from the defendant's wrongful act.” Stuart v. Bayless, 964 S.W.2d 920, 921 (Tex. 1998). They “are not recoverable unless the parties contemplated at the time they made the contract that such damages would be a probable result of the breach.” Signature Indus. Servs., LLC v. Int'l Paper Co., 638 S.W.3d 179, 186 (Tex. 2022) (internal quotations omitted). Such a “foreseeable” loss may follow predictably from the breach in the ordinary course of events or arise from special circumstances that the party in breach had reason to know. Id.

The Patriot Contract addresses the impact of liens in several sections. The contract required Patriot to keep the Project free of liens or claims: “Contractor shall save and keep Owner, Owner's loan proceeds, if any, and Owner's property free from all mechanic's and materialmen's liens and all other liens and claims, legal or equitable, arising out of the performance of the Work by Contractor hereunder.” The Patriot Contract further provided, “In the event any such lien or claim is filed by anyone claiming by, through, or under Contractor, Contractor shall either remove and discharge or bond around same within 10 days of the filing thereof.”

This contract language shows that Patriot and Mid-Main contemplated that liens could be harmful to Mid-Main and that one consequence of such liens could be the purchase of a bond to “bond around” them. Mid-Main's purchase of a bond to offset Patriot's lien was foreseeable in light of this contract language. See id. Patriot's second issue presents no basis for rendition of judgment.

3. Scaffold's Damages

Patriot and Travelers contend that the evidence is legally insufficient to support any damages to Scaffold because the Scaffold Subcontract was a lump sum contract, which after change orders entitled Scaffold to collect only $597,110.48, yet Patriot paid Scaffold at least $853,142.82.

The Scaffold Subcontract provided that Scaffold would provide scaffolding for the Project for a total “lump sum” of $470,118. Scaffold and Patriot agreed that Patriot “may add to or deduct from the amount of Subcontractor's Work, and any such changes shall be by a written Change Order setting forth in detail the changes involved and the value thereof ․” The parties executed four change orders, which increased the contract price to $597,110.48.

Scaffold's proposal, which is expressly incorporated into the Scaffold Subcontract as an exhibit, established various amounts in monthly scaffolding rental for the Project. This proposal states, “Rental will be billed in full every 30 days.” Immediately after incorporating the proposal into the contract, the parties agreed:

THIS CONTRACT REPRESENTS THE FINAL NEGOTIATION BETWEEN [SCAFFOLD] AND PATRIOT CONTRACTING, LLC AND ALL PREVIOUS PROPOSALS, SUBMITTALS, NEGOTIATIONS, WRITING, AND VERBAL STATEMENTS BETWEEN THE PARTIES OF THIS CONTRACT ARE NULL AND VOID.

The parties further agreed that Scaffold “shall not be entitled to receive additional compensation for extra work or materials or changes of any kind, unless the extra work or materials or changes were ordered by [Patriot], in writing ․”

The Scaffold Subcontract clearly and unambiguously reflects that Patriot would pay Scaffold a “lump sum” for Scaffold's work. The “practically universal rule” in Texas is when “one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.” El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 811 (Tex. 2012) (internal quotation omitted). When parties enter into fixed-sum contracts, “the party doing the work, not the purchaser of services, bears the risk that the work may be more difficult to perform than anticipated.” Cox Paving of Tex., Inc. v. H.O. Salinas & Sons Paving, Inc., 657 S.W.3d 756, 767 (Tex. App.—El Paso 2022, pet. denied). Courts must construe the contract by the language contained in the document. El Paso Field Servs., 389 S.W.3d at 811. Parties may freely allocate risk as they see fit. Id. at 812.

Patriot's supervisors signed Scaffold's time and material (“T&M”) timesheets and various Subcontractor Daily Construction Reports, both of which described Scaffold's work. On most of the daily reports, a “Time & Materials” box, rather than a “Lump Sum Contract” box, is checked. Scaffold asserts that these signed documents constitute written requests for additional work and materials pursuant to the Scaffold Subcontract. Additionally, Scaffold's invoices referred to monthly rental charges.⁸ Scaffold's representative, John Whigham, testified that Scaffold was not fully paid when the lump sum and change order amounts were paid, specifically referencing Patriot's “approvals” and signing of time sheets as a basis for Scaffold's entitlement to additional compensation.

Based on this evidence, the jury reasonably may have concluded that the T&M timesheets and the daily construction reports met the Scaffold Subcontract's requirement that Scaffold “shall not be entitled to receive additional compensation for extra work or materials ․ unless the extra work or materials ․ were ordered by [Patriot] in writing[.]” Thus, there is some evidence to support the jury's damages award to Scaffold, and rendition of judgment is not appropriate on this ground.

4. HERC's Damages

Patriot and Travelers contend that there is legally insufficient evidence of HERC's damages. Patriot pins its sufficiency challenge on the fact that the jury was instructed to consider the following element in computing HERC's damages: “Amounts HERC invoiced Patriot but was not paid for equipment, materials, and services HERC provided on the Project and that were in Patriot Pay Applications 28-31 that Mid-Main paid.” As noted above, the jury awarded HERC $600,792.16.

According to Patriot, the charge required that Mid-Main must have paid the amounts shown in these pay applications, and the evidence showed that Mid-Main “ultimately paid HERC $0 for HERC's invoices.” PA28 reflects payments due to HERC for invoice 665.24 for $82,786.37 and $1,877.30, with a correction zeroing out an amount listed for invoice 665.22. PA29 reflects a total of $122,620.93 due to HERC for invoice 665.25. Thus, these two PAs reflect HERC invoices totaling $207,284.60. PA30 contains two items marked as “Herc Reverse” and one as “Herc Overbill.” The HERC reversals are tied to invoices 665.24 and 665.25, and reflect negative amounts of $82,786.37 and $122,620.93. The “Herc Overbill” is reflected as a negative amount of $63,932.24, but it is not associated with an invoice number. HERC contends that there are no invoices to support Patriot's arguments and that Patriot unilaterally reduced these amounts after it terminated HERC. But even crediting Patriot's argument, the record reflects that HERC invoiced Patriot for more than these reductions, and that Mid-Main paid Patriot for PA28 through PA31, which included amounts for HERC's work. So there is some evidence of HERC's damages. With some evidence of damages, Patriot's rendition point fails.

5. Friedman's Tortious Interference Liability

In his first issue, Friedman contends that this court should reverse the judgment in part and render judgment in his favor on the tortious interference with prospective contract claim because Mid-Main presented no evidence that he intended to interfere with Mid-Main's potential financing relationship with Amegy Bank. We agree.

Texas law protects both existing contracts and prospective business relationships from unlawful interference. Jannise v. Enter. Prods. Operating LLC, No. 14-18-00516-CV, 2019 WL 3432171, at *5 (Tex. App.—Houston [14th Dist.] July 30, 2019, no pet.) (mem. op.). A party asserting a claim for tortious interference with a prospective business relationship must prove: (1) a reasonable probability that there would have been a contractual relationship; (2) an “ ‘independently tortious or unlawful’ ” act by the interfering party that prevented the relationship from occurring; (3) the interfering party did such act with a conscious desire to prevent the relationship from occurring or knew that the interference was certain or substantially certain to occur as a result of his conduct; and (4) the claimant suffered actual harm or damage as a result of the interference. Id. (quoting Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex. 2001)); Faucette v. Chantos, 322 S.W.3d 901, 914 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

The relevant jury charge question asked the following:

QUESTION NO. 15

Mid-Main has the burden of proof on this question.

Did Friedman intentionally interfere with Mid-Main's potential financing relationship with Amegy Bank?

Interference is intentional if committed with the desire to interfere with the contract or with the belief that interference was substantially certain to result.

In answering this question, you must find that:

(1) Mid-Main had a reasonable probability of entering a business relationship with Amegy;

(2) Friedman acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of his conduct;

(3) Friedman's conduct was independently unlawful;

(4) his interference proximately caused Mid-Main injury; and

(5) Mid-Main did suffer actual damage or loss as a result.

Friedman's conduct was independently unlawful if he made inaccurate statements in an affidavit used to support Patriot's lien on the Project.

Answer “Yes” or “No.”

Answer: Yes

(Emphasis in original). Mid-Main bore the burden of proof on this claim against Friedman and did not object to the question's wording.

Friedman contends that Mid-Main failed to present legally sufficient evidence that Friedman intended to disrupt Mid-Main's potential financing relationship with Amegy Bank because there is “no hint that Friedman knew of Mid-Main's efforts to obtain additional financing from Amegy Bank.” Mid-Main counters that Friedman did “not need knowledge of the specific identity of a third party—only the category of third party with which the defendant is intending to interfere.” Regardless whether Mid-Main's proposition is correct, the jury charge as given controls our legal sufficiency analysis. E.g., Sturges, 52 S.W.3d at 715, 727; Osterberg, 12 S.W.3d at 55. The charge asked the jury, “Did Friedman intentionally interfere with Mid-Main's potential financing relationship with Amegy Bank?” (Emphasis added).

Our record shows that Friedman knew that Patriot's general contractor's lien was hindering Mid-Main's efforts to obtain permanent financing. For example, in November 2018, Friedman sent an email that stated, “Our Rookie Developer needs to obtain a permanent loan. I am sure he has attempted to do so. Perhaps Patriot's lien is a problem to him.” Our record also contains evidence that Friedman at least foresaw potential bankruptcy and was preparing for it because he sought to put together investors to buy the Project if Mid-Main filed for bankruptcy protection. Even presuming the evidence is legally sufficient to support elements (2) through (5) as submitted to the jury, the fact-finder could not answer for Mid-Main on this claim unless it found “Mid-Main had a reasonable probability of entering a business relationship with Amegy.” And Friedman had to act with a conscious desire to “prevent the relationship from occurring.” (Emphasis added). Yet, we see nothing to support a finding that Friedman knew of or intended to interfere with Mid-Main's prospective financing relationship with Amegy Bank. Mid-Main does not dispute that Friedman was unaware of its prospective contractual relationship with Amegy Bank.

The cases Mid-Main cites do not address our particular issue. The majority of cases considering liability for tortious interference with prospective contracts involved only one potential relationship with one potential party. See, e.g., Sturges, 52 S.W.3d at 727. And most neither involved a jury trial nor detailed how the question was phrased to the jury. One case that does, Bradford, is unsupportive of Mid-Main's position because, unlike here, the instruction in that case was not specifically linked to any one potential contracting party. Bradford, 48 S.W.3d at 757.⁹

The jury charge in today's case did not ask whether Friedman interfered with any potential “financing relationships.” Cf. id. Rather, to support the finding, the evidence must show that Friedman's interference was with Mid-Main's potential relationship with Amegy Bank specifically, and that Friedman consciously desired to prevent that relationship. Without some evidence that Friedman was aware of that specific potential financing relationship, the jury's affirmative finding cannot stand.

For this reason, we sustain Friedman's first issue, and we accordingly render judgment dismissing this claim. Our resolution of this issue makes it unnecessary to address Friedman's second issue, in which he contends the economic loss rule precludes recovery on this claim.

Because we conclude the tortious interference finding against Friedman lacks legally sufficient evidentiary support, the exemplary damages awarded against him in the judgment must also be reversed because the award is based solely on the tortious interference claim. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 141 (Tex. App.—Waco 2005, pet. denied) (reversing exemplary damages as a consequence of reversing tortious interference finding); Pabich v. Kellar, 71 S.W.3d 500, 511 (Tex. App.—Fort Worth 2002, pet. denied) (same); see AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 662 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (stating that plaintiff cannot recover punitive damages if its compensatory damage claim is precluded as a matter of law). We sustain Friedman's fourth issue.

6. Friedman's Property Code Liability

In his third issue, Friedman contends that Property Code section 53.085(e) creates a private cause of action for inaccurate affidavits only for final pay applications, not monthly pay applications. Alternatively, he contends there is no evidence that Mid-Main's damages—“Mid-Main's yearly payments for bond addressing Patriot's lien”—resulted from Friedman's Property Code violations.

Mid-Main based its statutory liability claim against Friedman on pay applications “submitted to Mid-Main for payment pursuant to Texas Property Code Section 53.085.”¹⁰ Mid-Main argued that Patriot's pay applications contained affidavits signed by Friedman that falsely stated that “all amounts have been paid by [Patriot] for Work for which previous Certificates of Payment were issued and payments received from Mid-Main.” Before trial, the trial court granted partial summary judgment for Mid-Main on its statutory claim, ruling that Friedman's affidavits in support of Patriot's PA32 on April 5, 2017, PA34 on April 18, 2017, and PA35 on October 9, 2017, violated section 53.085. As noted above, the trial court instructed the jury that Friedman swore to inaccurate information on these pay applications.

Resolution of this part of Friedman's issue requires us to interpret section 53.085. To determine a statute's meaning, we focus on the “ ‘plain and common meaning of the statute's words and to the definitions it provides, unless a different meaning is apparent from the context.’ ” Hancock v. RJR Vapor Co., LLC, — S.W.3d—, 2026 WL 1275115, at *2 (Tex. May 8, 2026) (quoting Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40-41 (Tex. 2020)). “ ‘When the words read in context are clear, they determine intent; a court must never rewrite them under the guise of interpretation.’ ” Id. (quoting Hegar, 605 S.W.3d at 40-41).

The Property Code provides:

(a) Any person who furnishes labor or materials for the construction of improvements on real property shall, if requested and as a condition of payment for such labor or materials, provide to the requesting party, or the party's agent, an affidavit stating that the person has paid each of the person's subcontractors, laborers, or materialmen in full for all labor and materials provided to the person for the construction. In the event, however, that the person has not paid each of the person's subcontractors, laborers, or materialmen in full, the person shall state in the affidavit the amount owed and the name and, if known, the address and telephone number of each subcontractor, laborer, or materialman to whom the payment is owed.

․

(e) A person signing an affidavit under this section is personally liable for any loss or damage resulting from any false or incorrect information in the affidavit.

Tex. Prop. Code § 53.085(a), (e).

Friedman contends that because subsection (a) contains the terms “in full,” it necessarily applies only to affidavits filed with final pay application and is not applicable to the interim pay application affidavits that he signed. He argues that the purpose of the statute is to permit the parties to contract for payment of retainage to the contractor on the owner's receipt of a lien-release affidavit, relying on Solar Applications Engineering, Inc. v. T.A. Operating Corp. 327 S.W.3d 104, 111 (Tex. 2010). His reliance on this case is misplaced. The issue there was “whether the [contract's] lien release provision is a condition precedent to Solar's recovery for breach of contract and whether failure to provide it is a bar to recovery.” Id. at 106. The opinion notes, “Section 53.085 of the Texas Property Code specifically authorizes an owner to require a lien-release affidavit as a condition of final payment.” Id. at 108. However, the Solar court was not called upon to address whether this statute applies only to affidavits filed with final pay applications, and nothing in the opinion states that section 53.085's protections are limited only to such affidavits. See id. at 104-13.

Neither does the plain language of section 53.085 indicate that the legislature intended it to apply only to affidavits filed in support of final pay applications. The word “final” does not appear in the statute, and no legislative text suggests that the phrase “in full” means that this section applies only to final pay applications. Had the legislature intended the statute to apply exclusively to affidavits in support of final payments, it could easily have said so. We must not rewrite the statute under the “guise of interpretation.” Hancock, 2026 WL 1275115, at *2; Hegar, 605 S.W.3d at 41; Colorado County v. Staff, 510 S.W.3d 435, 444 (Tex. 2017). Based on the statute's language, the trial court did not err in granting summary judgment in Mid-Main's favor on this issue.

Friedman alternatively argues that, assuming that section 53.085 applies, we should reverse the trial court's judgment because there is no evidence that Mid-Main's claimed damages resulted from any false or incorrect information in the affidavits. Question 35 asked the jury, “What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Mid-Main for its damages, if any, proximately caused by Friedman's swearing to inaccurate information in affidavits submitted with Patriot's Pay Applications ․ ?” The only damages category provided to the jury for this question was “Mid-Main's yearly payments for bond addressing Patriot's lien.” Friedman argues that Mid-Main's cost to bond around Patriot's lien resulted from Patriot's filing of the lien, not from any inaccurate information contained in the affidavits supporting Patriot's pay applications.

In considering this argument, we must construe the evidence and inferences in favor of the jury's verdict. See, e.g., City of Keller, 168 S.W.3d at 810-11. Through this prism, there is legally sufficient evidence to support the damages awarded by the jury. Patriot filed a lien of over $3.8 million as the amount unpaid and owing from Mid-Main. This lien was based on the pay applications that Mid-Main refused to pay, which the trial court determined contained inaccurate information to which Friedman swore. Mid-Main presented evidence that it had to “bond around” Patriot's lien to obtain financing. Given Patriot's reliance on the inaccurate affidavits to support the pay applications that resulted in the lien, the jury reasonably could have inferred that Mid-Main's cost to bond around Patriot's lien was proximately caused by ¹¹ Friedman's violations of section 53.085(e).¹²

Finally, Patriot and Friedman argue that the trial court's jury instructions regarding its summary-judgment ruling that Friedman violated Property Code section 53.085 directly commented on the weight of the evidence. Because this issue will likely recur on remand, we address it in the interest of judicial economy and to provide guidance to the trial court. See Dallas Mkt. Ctr. Devel. Co. v. Liedecker, 958 S.W.2d 382, 385 (Tex. 1997) (per curiam); De Anda v. Jason C. Webster, P.C., No. 14-17-00020-CV, 2018 WL 3580579, at *7 (Tex. App.—Houston [14th Dist.] July 26, 2018, pet. denied) (mem. op.).

The trial court's summary-judgment ruling that Friedman violated the Property Code was communicated to the jury in two ways. The first was during the court's Rule 226a instructions before opening statements. The court informed the jury:

Stephen Friedman swore to inaccurate information in affidavits submitted with Patriot's applications for payment under the contract with Mid-Main on April 5th, 2007; April 18th, 2007; and October 9th, 2007. Friedman is responsible for any damages resulting from the inaccurate information in those affidavits.

Additionally, the issue was referenced in Question 35, as quoted above.

The trial court has considerable discretion in framing a jury charge. Nezat v. Tucker Energy Servs., Inc., 437 S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2014, no pet.). In doing so, the court must submit such explanatory instructions and definitions as will assist the jury in answering the jury questions submitted. Tex. R. Civ. P. 277; First Nat'l Bank v. Jarnigan, 794 S.W.2d 54, 61 (Tex. App.—Amarillo 1990, writ denied). A trial judge may not comment directly on the weight of the evidence. Tex. R. Civ. P. 277. Our statutes, court-made rules, and judicial decisions emphatically and repeatedly prohibit Texas judges from commenting on the weight of the evidence. In re M.S., 115 S.W.3d 534, 538 (Tex. 2003). A comment on the weight of the evidence may take many forms, including suggesting to the jury the judge's opinion on a matter about which the jury is asked. See H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 24 (Tex. 1998). A court may incidentally comment on the weight of the evidence, however, when the comment is properly a part of an instruction or definition. Tex. R. Civ. P. 277.

Several courts have found that charging the jury on issues decided as a matter of law constituted an unlawful comment on the weight of the evidence. See, e.g., Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 14-15 (Tex. App.—Dallas 1993, no writ) (discussing cases). However, it can be appropriate to instruct the jury about the trial court's legal ruling that is a predicate to another question in the jury charge. Leavitt v. McLane Co., Inc., No. 03-19-00529-CV, 2021 WL 1680217, at *4 (Tex. App.—Austin Apr. 29, 2021, pet. denied) (mem. op.). In Leavitt, the court of appeals upheld the trial court's instruction that Leavitt failed to comply with an agreed injunction, because it constituted the predicate to the damage question in the charge, which asked the jury to determine the amount of damages, if any, to which McLane was entitled due to Leavitt's failure to comply with the injunction. Id. Here, similarly, a reference to the trial court's summary-judgment ruling was a predicate to Question 35, which asked the jury the amount of damages, if any, that would compensate Mid-Main for Friedman's acts that violated the Property Code. Thus, we conclude the court did not abuse its discretion by informing the jury either within the text of Question 35 or in its Rule 226a instructions that it had determined as a matter of law that Friedman swore to inaccurate information in affidavits submitted with pay applications. Friedman and Patriot argue that the instruction's language suggests to the jury that the court believes or has determined that Friedman is untrustworthy. But we conclude the language is not an abuse because it substantively describes the nature of a violation of the Property Code provision at issue.

However, we agree with Patriot and Friedman that the part of the Rule 226a instruction informing the jury that Friedman “is responsible for any damages resulting from the inaccurate information in those affidavits” constituted an impermissible comment because it explicitly told the jury of the court's opinion on a matter, including the legal effect of that ruling. This part of the instruction violated Rule 277. We sustain in part Patriot's fifth issue and Friedman's sixth issue.

* * *

In sum, we sustain Friedman's first and fourth issues, which requires rendition of a take-nothing judgment on Mid-Main's claim against Friedman for tortious interference with Mid-Main's prospective financing relationship with Amegy Bank and related exemplary damages. We overrule appellants' remaining issues that seek rendition of judgment.

However, for reasons we discuss next, we reverse the judgment and remand the remainder of the parties' claims and counterclaims for a new trial on liability and damages. Because we are remanding the case for a new trial that will presumably include a new trial on the Property Code claim, we sustain in part Patriot's fifth issue and Friedman's sixth issue as to the jury instructions relating to that claim.

References to Improper Matters

Appellants jointly contend that appellees' counsel repeatedly injected unfairly prejudicial matters into the trial proceedings by way of irrelevant evidence and improper witness questions, culminating in incurably harmful jury argument. In particular, they argue the trial was rife with “charges of invidious discrimination and extreme personal attacks” on them and their counsel, mandating a new trial.

A. Standards of Review and Applicable Law

Control over counsel during closing argument is within the trial court's discretion and will not be disturbed on appeal without a clear showing of abuse of that discretion. Duke v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 WL 2561245, at *2 (Tex. App.—Houston [14th Dist.] June 13, 2017, pet. denied) (mem. op.). An improper jury argument is curable when its harmful effect could be eliminated by objection and an instruction to the jury to disregard it. Peñalver, 256 S.W.3d at 680-81; Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex. 1968); Clark v. Bres, 217 S.W.3d 501, 509 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). To complain about jury argument that is improper but curable, the complaining party must, at the time the argument occurs, promptly object, obtain a ruling on its objection, and, if the objection is sustained, request an instruction that the jury disregard the improper remark. See Peñalver, 256 S.W.3d at 680. In some cases, however, an improper jury argument may be incurable, and a contemporaneous objection is not required. The point may be raised in a motion for new trial, as appellants did. Tex. R. Civ. P. 324(b)(5). We review the denial of a motion for new trial for an abuse of discretion. In re Marriage of Sandoval, 619 S.W.3d 716, 721 (Tex. 2021) (per curiam).

Incurable jury argument is rare because retraction of the argument or instruction from the court tends to cure any probable harm. See Alonzo v. John, 689 S.W.3d 911, 913 (Tex. 2024) (per curiam); Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Incurable jury argument “is that which strikes at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. Although uncommon, incurable argument usually encompasses appeals to racial prejudice; unsupported charges of perjury; unsupported, extreme, and personal attacks on opposing parties and witnesses; or baseless accusations of witness tampering. Peñalver, 256 S.W.3d at 681; see also In re Rudolph Auto., LLC, 674 S.W.3d 289, 312 (Tex. 2023) (orig. proceeding).

To show jury argument is incurably harmful, the complainant must prove: (1) an improper argument was made; (2) that was not invited or provoked; (3) that was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial court; and (4) that by its nature, degree, and extent constituted reversibly harmful error based on an examination of the entire record to determine the argument's probable effect on a material finding. Clark, 217 S.W.3d at 509. To warrant the “strong medicine” of a new trial on the basis of incurable jury argument, the complaining party must persuade the court that, based on the record as a whole, the offensive argument was so extreme that a juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that which the juror would have otherwise agreed. Phillips, 288 S.W.3d at 883. We must decide “whether the argument, considered in the proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.” Alonzo, 689 S.W.3d at 913; Peñalver, 256 S.W.3d at 681. “This inquiry requires an evaluation of the case as a whole—beginning with voir dire and ending with closing argument—and includes an assessment of whether the complaining party invited or provoked the argument.” Alonzo, 689 S.W.3d at 913.

B. Relevant Background

Because our evaluation requires a review of the entire case, we begin by describing when and how the offending concepts found their way into the case.

1. Pre-trial Proceedings

During a two-day pre-trial hearing on motions in limine, the parties engaged in heated discussions regarding the admissibility of emails, audio recordings, and deposition excerpts, purportedly showing racial and gender bias by Patriot employees, particularly Friedman.

On appeal, appellants focus on four emails that paint Friedman and Patriot employees as racist or sexist. These are Mid-Main's Exhibits 253, 288A, 309, and 438. Exhibit 438 is a four-page chain email entitled “Mexico is Angry.” Friedman did not write the email, but its content was attributed to him because he forwarded it to several people. The email purports to describe the negative reaction of Mexican state legislators allegedly upset because recent laws in Arizona resulted in Mexican citizens returning to Mexico “without jobs or money,” supposedly burdening the Mexican government. The email includes several statements derogatory of Mexican citizens who come to the United States illegally. The email's author requests all recipients to forward the email to twenty others. Reflective of a like theme, Exhibit 309 is an email by Patriot employee Stephen Nelson, who wrote in response to a letter about bilingual supervision on the job site that “we ought to require that we have an English speaking supervisor for every trade. Nowhere is it written that we have to all of a sudden become politically correct because the Mexicans build our projects. Wrong on so many levels.” Exhibits 253 and 288A are alleged to contain sexist language concerning one of HERC's female representatives.

Mid-Main sought to introduce this evidence as relevant to its claim that Patriot breached its contract by failing to properly supervise the Project and cooperate with the Project's architect. According to Mid-Main, the evidence supported its claims that Patriot refused to pay minority subcontractors. Mid-Main insisted that evidence of culturally harsh or insensitive language in communications from Friedman and other Patriot employees was important to demonstrate that Patriot dealt inappropriately with the subcontractors and failed to properly supervise the Project. Mid-Main asserted that racial and gender bias was not just attributable to Friedman but was “ubiquitous” on the Project. Further, Mid-Main argued that Patriot would suggest that Mid-Main failed to pay its bills, was a “deadbeat,” and caused delays on the Project. Mid-Main contended that its response to these arguments would be that the manpower issues on the Project were caused partly by Patriot's desire to exclude certain people, namely minorities, from the Project.

Appellants objected that the evidence was irrelevant and intended to inflame or poison the jury. After reviewing the exhibits and hearing from the attorneys, the trial court pre-admitted some exhibits, including the key emails, but excluded others.

2. Trial Proceedings

Based on the court's pre-trial admission of Mid-Main's evidence illustrating Friedman's alleged prejudices, appellees questioned several witnesses about Friedman's views on the ethnicity, religion, or gender of those involved with the Project. For example, while cross-examining one of Patriot's superintendents on the Project, Elton Allemang, Mid-Main's counsel, John Zavitsanos, insinuated that Friedman did not like Larry Johnson, the Project architect, because Johnson is African-American: “Did Mr. Friedman have a little bit of a problem with Mr. Johnson? ․ Mr. Johnson is African American?” Allemang denied that Friedman had a problem with Johnson.

Mid-Main's counsel later asked Allemang whether Friedman had “a problem with certain kinds of people” on the jobsite. This led to the following exchange:

Q. [Friedman] didn't have a problem with Hispanics and threatening to call immigration?

A. I never heard anything like that.

Q. Really?

A. Really.

Q. How about Muslims? Did he have problems with Muslims?

A. Not to my knowledge.

Q. You know that one of the subcontractors was Muslim, right?

A. No, I didn't know that. Who would that be?

Q. Applied Finishes? You know the gentleman that owns Applied Finishes?

A. I don't know him personally. I know of Applied Finishes.

․

Q. Right. And that's why what he did was he paid his buddies, but then when it came to the Muslim guy, he didn't pay him, and that guy ended up suing Patriot, didn't he?

After an objection, the court acknowledged this violated the limine order.

Mid-Main's counsel later returned to the topic, asking Allemang, “Part of the reason ․ that Patriot had problems manning the job is because Mr. Friedman has problems with minorities, right?” Allemang responded, “I don't know that.” The next day, continuing his cross-examination of Allemang, Mid-Main's counsel covered portions of Exhibit 438, the “Mexico Is Angry” email. This email was admitted into evidence over objection and included the following statements, some of which were read to the jury:

The state legislators from the Mexican State of Sonora traveled to Tucson to complain about Arizona's new employer crackdown on illegal's from Mexico. It seems that many Mexican illegal's are returning to their hometowns and the officials in the Sonora state government are ticked-off. A delegation of nine state legislators from Sonora was in Tucson on Tuesday to state that Arizona's new ‘Employer Sanctions Law’ will have a devastating effect on the Mexican state. At a news conference, the legislators said that Sonora, — Arizona's southern neighbor — made up of mostly small towns — cannot handle the demand for housing, jobs and schools that it will face as Mexican workers return to their hometowns from the USA without jobs or money.

The Mexican legislators are angry because their own citizens are returning to their hometowns, placing a burden on THEIR state government instead of ours.

․

Wrong! The United States is a sovereign nation, not a subsidiary of Mexico, and its taxpayers are not responsible for the welfare of Mexican citizens․ It's time for the Mexican government and its citizens to stop feeding parasitically off the United States and to start taking care of its own needs․ Noncitizens will never be able to hold political office․ Nonresidents will not have the right to vote no matter how long they are here. All government business will be conducted in our language․ If you do come to this country illegally, you will be actively hunted and when caught, sent to jail until your deportation can be arranged. All assets will be taken from you.

After reading portions to the jury, Mid-Main's counsel asked Allemang, “Do you know whether Mr. Friedman came on the job site and made threats to call immigration?” to which Allemang responded, “No, I don't know.”

Cross-examining Friedman, Mid-Main's counsel pressed him directly: (1) whether he had “problems with Hispanic workers on the job site”; (2) whether Patriot had “a culture of, while on the Mid-Main project, that anybody other than patriotic white males — we would take their word for it, and other people would be lying regarding the Mid-Main project?”; and (3) if a person who angered Friedman was Hispanic.

Mid-Main's counsel also suggested that Friedman was sexist, asking Patriot's project manager, Nelson, whether Friedman “has a real problem with women that have their own mind” or “that speak their own mind.” Referencing a Patriot email, Exhibit 288A, stating that a female HERC representative “found someone new to bitch about,” Mid-Main's counsel mischaracterized its substance by pointing to the woman in question and asking in front of the jury, “[C]an we agree this woman right here is a bitch?” Opposing counsel immediately approached the bench to complain: “I don't know how to put it other than this has gotten way out of hand. The e-mail does not call her a bitch, and he's putting it up here and suggesting to the jury that it does. It says she found someone new to bitch about, to complain about. It's not calling her a bitch. And this continued innuendo and references to racism and sexism and all that stuff is creating a sideshow that is going to confuse this jury, and it's improper and it needs to stop.” The court sustained the objection.

While questioning HERC's principal David Lane, Mid-Main's counsel asked whether Friedman tried to “blackmail” him. Lane responded, “Yes.” Lane testified that Friedman said, “If we would pay $750,000 ․ and release them, then they would release us from their claims in this case․” Then, at a bench conference outside the jury's presence, Lane clarified that when he used the word “blackmail,” he was referring to settlement discussions with Friedman. After the bench conference, the jury was instructed to disregard Mid-Main's questioning on that topic.

Mid-Main was not the only appellee that sought to portray Patriot in a negative light based on inflammatory innuendo. Scaffold's counsel, William Harmeyer, drew a connection to Nazi Germany while cross-examining Patriot's Nelson:

Q. Do you know what propaganda is?

A. I think you're about to tell me.

Q. That's when you tell a lie loud enough and often enough that people start to believe it. Joseph Goebbels, Hitler's chief propogandist, World War II, led to the slaughter of millions of people.

If you tell a lie loud enough and often enough, people will believe you, correct?

A. That's called gaslighting, as well, so yes.

Circling back to this theme, counsel asked Nelson: “If you tell a lie loud enough and often enough, people will tend to believe it, correct? ․ I'm saying that Patriot, as part of their culture, is telling lies loud enough and often enough to try and make people believe the lie --.” Opposing counsel objected that the question was argumentative and “quoting Goebbels,” and counsel withdrew the question.

Scaffold's counsel also suggested that Patriot was blaming HERC for shoddy work by comparing Patriot to ancient Roman generals who “lined up all their soldiers and had them kill every tenth soldier.” Counsel then asked Nelson, “Isn't that what you're doing here, sacrificing one subcontractor, regardless of fault, to send a message to everyone else?”

Scaffold's counsel raised the issue of race again with Friedman by asking him to confirm that he knew Scaffold's counsel's wife had a Hispanic daughter and three black sons. The question violated the court's limine order, and the court sustained a Rule 403 objection.

Travelers takes issue with the manner in which Mid-Main referred to it and its attorneys. In questioning Travelers' representative, Mid-Main's counsel accused Travelers of practicing a strategy or philosophy of “divert, delay, and deny” in handling performance bond claims. Displaying an email from Travelers' pre-trial attorneys, Mid-Main referred to that firm as the “law firm of divert, delay, and deny.”

3. Closing Arguments

Appellees' counsel reinforced these themes and invoked new ones during closing argument. Appellants first direct us to Mid-Main's characterization of Friedman as prejudiced. Mid-Main's counsel told the jury that Friedman was a “petty, vindictive, racist, mean little man.”

Other closing remarks, appellants say, tainted the process not only as to Friedman but to Patriot and Travelers as well. Mid-Main's counsel called Patriot “thugs” and likened Travelers to an “enabling” “drug dealer.”¹³ In like manner, HERC's and Scaffold's counsel urged the jury to view Friedman and Travelers as wealthy murderers:

The rich get richer and the poor get poorer, and for some of the rich, that is done through cheating and lying and climbing over dead and murdered bodies. During this trial, I learned and found out that Steve Friedman is the hundred-million-dollar man and that Travelers is the largest and richest surety in the state of Texas. Steve Friedman and Travelers could've paid HERC and Scaffold anytime they wanted to without breaking a sweat, but they didn't. Instead, they tried to murder them and climb over their dead bodies for more money.

HERC's and Scaffold's attacks reasonably could have been construed as directed at the trial lawyers. Alluding to Mid-Main's derogatory nickname for Travelers as “divert, delay, and deny,” HERC's and Scaffold's counsel urged during closing argument that Travelers' attorneys added a “new law partner”—“lie”—during the trial and described Traveler's trial attorneys as the “law firm of delay, divert, deny, and lie.” Counsel accused Patriot's and Traveler's representatives or lawyers of lying, fabricating evidence, and witness tampering:

And just to bolster their case, sprinkle in some lying e-mails generated during the project and even make up and -- forged exhibits to Scaffold, just don't pay them, and lie.

․

[A]fter three weeks of trial, Travelers and Patriot have now suddenly discovered a new claim on bond that is not 40 pages but 605 pages and stuffed with cancelled checks and paid receipts showing that Scaffold was allegedly vastly overpaid by several hundred thousand[ ] dollars on its contract. That's Patriot Exhibit 1510, and it's a lie and it's a made-up document.

C. Analysis

Patriot, Friedman, and Travelers cite the above matters as a laundry list of improper topics intended to inflame the jury. They are particularly critical of appellees' references to racism and sexism based on the introduction and use of the race- and gender-themed emails, which they say are irrelevant.

At the outset, we reject Mid-Main's suggestion that appellants waived any complaint about the impropriety of the emails because they did not specifically assert in their statement of issues that the trial court erred by admitting them into evidence. In their issues, each appellant seeks a new trial based on appellees' asserted “trial misconduct,” including improper jury argument. Rule 38.1 provides that an issue statement “will be treated as covering every subsidiary question that is fairly included.” Tex. R. App. P. 38.1(f). A party sufficiently presents an issue for appellate review by arguing the issue's substance, even if the party does not call the issue by name. St. John Missionary Baptist Church, v. Flakes, 595 S.W.3d 211, 214 (Tex. 2020). We should consider “the parties' arguments supporting each point of error and not merely the wording of the points.” Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995). In keeping with these principles, this court traditionally considers arguments reasonably construed as supporting an appellant's stated issues. KB Contracting v. WM Enterp., Inc., No. 14-19-00629-CV, 2020 WL 5950020, at *3 (Tex. App.—Houston [14th Dist.] Oct. 8, 2020, pet. denied) (mem. op.); @.C.T.S. @dvanced Comput. Tech. Servs., LLC v. Lexington Auto Repair, Inc., No. 14-16-00497-CV, 2017 WL 3662465, at *4 (Tex. App.—Houston [14th Dist.] Aug. 24, 2017, no pet.) (mem. op.). Here, the substance of appellants' briefing challenges the emails as irrelevant and unfairly prejudicial in nature, matters fairly included within the scope of appellants' stated issues. We are also obliged to consider the propriety of the emails as part of our entire case review. See Alonzo, 689 S.W.3d at 913; Nat'l Union Fire Ins. Co. v. Kwiatkowski, 915 S.W.2d 662, 664-65 (Tex. App.—Houston [14th Dist.] 1996, no writ).

The Supreme Court of Texas has “long recognized that it is not acceptable advocacy to attempt to inflame the jury with irrelevant evidence of or reference to such ‘hot-button’ matters as sex, race, ethnicity, nationality, or religion.” Coastal Oil & Gas Corp. v. Garza Energy, Trust, 268 S.W.3d 1, 49 (Tex. 2008) (Johnson, J., concurring) (citing cases). “Texas courts have not hesitated to treat such irrelevant evidence and comments as incurable error.” Id. (citing Reese, 584 S.W.2d at 840). Coastal Oil & Gas is particularly persuasive here. In that case, the central issue was whether subsurface hydraulic fracturing of a natural gas well that extends into another's property was a trespass for which the value of gas drained as a result may be recovered as damages. Id. at 4. A key dispute was an allegation by Salinas, a mineral rights owner, that Coastal was depriving Salinas of royalty income by drilling in such a way as to allow Share 13 gas, on which Coastal owed Salinas a royalty, to drain to Share 12, where Coastal was entitled to the gas unburdened by a royalty obligation. Id. Part of the dispute also involved questions of Salinas's title. Id. at 8. Salinas offered into evidence an older internal memo from Coastal's files discussing title problems among the Share 13 owners, which the author attributed to the fact that their ancestors were, in his words, “mostly illiterate Mexicans.” Id. The trial court overruled Coastal's objection that the memo was irrelevant and unfairly prejudicial. Id. The memo itself added no probative value to any disputed factual issue but was repeatedly referenced to prejudice Coastal before an all-Hispanic jury. Id. at 23. The supreme court held that the memo's admission was reversible error and justified a new trial. Id. at 25-26.

In another case illustrating how unfairly invoking racial prejudices will fatally infect trial proceedings, the introduction of a truck driver's illegal immigration status into a multi-fatality vehicular accident trial resulted in a new trial. TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010). There, the court held that the driver's immigration status was collateral and irrelevant to proving any material issue, id. at 241, adding that any marginal relevance was substantially outweighed by the evidence's prejudicial potential. Id. at 244. The matter was, the court said, “plainly calculated to inflame the jury against him.” Id. “Such appeals to racial and ethnic prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’ cannot be tolerated because they undermine the very basis of our judicial process.” Id. at 245 (quoting Tex. Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859, 864 (Tex. App.—San Antonio 1990, writ denied)).

Coastal Oil & Gas and TXI bear on the present circumstances, where Mid-Main and the other appellees used the emails throughout trial as an invitation for the jury to consider racial and gender prejudices of a party in making its decision. Yet the claims at issue are grounded on alleged breaches of contract and tortious interference. The challenged emails added nothing probative to support or refute those claims. According to Mid-Main, they were relevant to proving that Patriot breached the contract by understaffing the crews and mismanaging the work, which happened because Friedman was prejudiced against Mexican workers and women. We disagree such a theory supports the relevance of these emails to Mid-Main's claim. To prove breach of contract, the plaintiff has to show that a breach occurred; why the breach occurred is not something that must be proven to prevail. See Methodist Hosp. v. Halat, 415 S.W.3d 517, 521-22 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that reasons for breaching contract were not relevant to breach of contract claim). To the extent the reasons causing a contract breach could be relevant in any given case, they are not relevant here under the contract at issue. Nor do the emails pertain to the tortious interference claims. Even assuming the emails were relevant at all, the obvious danger of unfair prejudice substantially outweighed any relevance. For these reasons, the emails should have been excluded under Rule 401 or Rule 403.

According to Mid-Main, references to racial and gender bias are few and far between in this record, which covers a month-long trial and twenty-two witnesses. But in Coastal Oil & Gas, the erroneous introduction of a single memo containing a single racial slur tainted the entire case. The same was true in TXI. In contrast, appellees repeatedly referenced Friedman's and Patriot's alleged racial and gender prejudices in questioning the witnesses. No witness admitted that Friedman was prejudiced, but none would be expected to do so. Recurrent questions plant the improper topic in the jurors' minds regardless of the answers. The record shows that appellees reinforced references to Friedman's racial and gender preferences as a means to improperly inflame the jury.

A trial court has discretion in admitting or excluding evidence. See Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). Still, a court abuses that discretion when it admits evidence that should have been excluded due to its improperly inflammatory character. Coastal Oil & Gas, 268 S.W.3d at 26. That is what occurred here. Although appellants do not seek a new trial based solely on the trial court's admission of the emails, they do seek a new trial because Mid-Main introduced the emails and appellees used them as a springboard to confuse and inflame the jury with accusations that Friedman and by extension Patriot harbored racist and sexist beliefs, which have no legitimate relation to the merits.

Indeed, Mid-Main expressly called Friedman a “mean” “racist” during closing argument. The supreme court has made clear that “[a]n appeal to racial prejudice is a paradigmatic example of incurable jury argument.” Alonzo, 689 S.W.3d at 914. The Alonzo court explained that no court should tolerate such arguments “because cases should always be tried and determined on the facts proven.” Id. Improperly inducing a jury to consider racial or gender biases of parties undermines the “fairness and equality of justice” produced by our jury system. See id.¹⁴ Calling a party a “racist” during closing argument is not a mere incidental reference to race; it is a characterization specifically designed to induce the jury to view the defendant through a racial lens and feel animus toward him. Cf. Guerrero, 800 S.W.2d at 866 (noting that “incurable reversible error occurs whenever any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity.”). Mid-Main's personal attacks on Friedman encouraged the jury to view him in an extraordinarily negative light and to find against him—and his company, Patriot—at least in part on that basis. This strategy paid off: the jury found that Friedman intentionally interfered with Mid-Main's potential financing relationship with Amegy Bank, despite there being no evidence that Friedman knew about this potential relationship. The jury awarded Mid-Main damages of $537,855 and assessed $15 million in exemplary damages against Friedman for this interference.¹⁵

Importantly, we see nothing in the record indicating that Friedman or Patriot invited or provoked this type of questioning or argument from appellants. See Alonzo, 689 S.W.3d at 915.

Mid-Main argues that referring to Friedman as a racist is not improper in this instance because it is grounded on the emails and reasonable inferences from them. A litigant is entitled to have his counsel argue the facts of the case to the jury. Clark, 217 S.W.3d at 509. Arguments are not improper when based on evidence and reasonable inferences and deductions. Duke, 2017 WL 2561245, at *2; Zurita v. Lombana, 322 S.W.3d 463, 482-83 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); McKenzie v. Positive Action Int'l, Inc., No. 01-10-01073-CV, 2012 WL 1454478, at *30 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, pet. denied) (mem. op.); Clark, 217 S.W.3d at 510; see also Wal-Mart Stores Tex., LLC v. Bishop, 553 S.W.3d 648, 678-79 (Tex. App.—Dallas 2018, pet. denied) (accusations of perjury that found evidentiary support not incurably harmful). Trial counsel should be given wide latitude in arguing the evidence and the reasonable inferences from the evidence to the jury. Clark, 217 S.W.3d at 510. Still, we will not disregard the incurably harmful effect of repeated references to racial or gender prejudices when the evidence upon which they are based is ultimately determined to have been erroneously admitted.

Besides accusations of racism, appellants complain that other improper trial conduct was equally incurable, such as comparing Patriot to Hitler's lead propogandist, and appellants to “thugs,” “drug dealers,” and “murderers.” In Peñalver, a nursing-home resident died after being dropped by one of the nursing home's employees. Peñalver, 256 S.W.3d at 679. In the heirs' wrongful-death suit, plaintiffs' counsel equated the defendant's argument for a lesser damage award with atrocities committed against the elderly and infirm in Nazi Germany's World War II T-4 Project. Id. at 680. The improper argument was held incurable because it “was designed to incite passions of the jury and turn the jurors against defense counsel for doing what lawyers are ethically bound to do: advocate clients' interests within the bounds of law.” Id. at 682. The nursing home's attorney was “entitled to urge a smaller damages amount than the plaintiffs sought without being painted as modern-day equivalents of T-4 Project operators.” Id. Here, appellees' conduct is certainly comparable.

Although some of the statements outlined above may be considered permissibly hyperbolic,¹⁶ most are comparable to those that courts have held to be so inherently prejudicial and inflammatory that no instruction could have cured them: “Charges that opposing counsel manufactured evidence, suborned perjury, or was untruthful are highly improper and are generally considered to be incurable.” Circle Y of Yoakum v. Blevins, 826 S.W.2d 753, 758 (Tex. App.—Texarkana 1992, writ denied) (collecting cases); see also Amelia's Automotive, Inc. v. Rodriguez, 921 S.W.2d 767, 773-74 (Tex. App.—San Antonio 1996, no writ) (“The incurability of the comments at issue is manifest. The accusations made in this case strike at the heart of an attorney's credibility, and by association, the attorney's client. Comments impugning the character of a party's counsel result in those traits being equated with the party itself.”). The supreme court in both Alonzo and Peñalver denounced attacks on opposing parties and counsel: “Unsupported, extreme, and personal attacks on opposing parties and witnesses can similarly compromise the basic premise that a trial provides impartial, equal justice.” Peñalver, 256 S.W.3d at 681; see Alonzo, 689 S.W.3d at 913-14. If the comments at issue do not rise to the level of being incurable on their own, at a minimum, they contribute to the degree of harm our record manifests.

After reviewing the entire record, we hold that the “ ‘strong medicine’ ” of a new trial is warranted. See Alonzo, 689 S.W.3d at 913 (quoting In re Rudolph, 674 S.W.3d at 296). We sustain Patriot's seventh issue, Traveler's first issue, and Friedman's fifth issue.¹⁷

Conclusion

We have sustained Friedman's first issue challenging the legal sufficiency of the evidence of Mid-Main's tortious interference with its prospective financing relationship with Amegy Bank. Accordingly, we render judgment dismissing this claim, as well as the exemplary damages associated with it. We overrule the parties' other issues that would result in rendition of judgment.

However, because we sustain appellants' issues concerning incurable jury arguments, we reverse and remand the parties' remaining claims for a new trial on liability and damages. See Tex. R. App. P. 44.1. Because we remand for a new trial on this basis, we need not address the parties' other remand issues, including Mid-Main's cross-appeal on damages, with the exception of the jury instructions related to Mid-Main's Property Code claim. See Tex. R. App. P. 47.1.

FOOTNOTES

1.   The Patriot Contract provides:§ 9.9.4 ․ Notwithstanding anything in the Contract Documents to the contrary, upon Owner occupying any portion of the Work, including the first floor of the parking garage, Owner agrees to release the retainage which is directly attributable thereto upon receipt of reasonable documentation, including without limitation an unconditional lien release from all Subcontractors providing labor or materials to the portion of the Work occupied by Owner.

2.   Patriot submitted PA33 on April 18, 2017, and submitted PA34 and PA35 on October 9, 2017.

3.   Patriot acknowledges that Mid-Main spent approximately $8.1 million to finish construction.

4.   In the final judgment, the trial court disregarded the findings relating to Friedman's interference with the subcontractor agreement, and Mid-Main does not challenge that ruling on appeal. The only tortious interference claim at issue on appeal is the claim that Friedman interfered with the potential financing relationship with Amegy Bank.

5.   The charge contained this same element for several of the jury's damages findings, including Question 32 regarding damages for Patriot's breach of the Patriot Subcontract, Question 34 for damages for Mid-Main's interference with financing claim against Friedman, Question 35 for damages proximately caused by Friedman's “swearing to inaccurate information in affidavits submitted with Patriot's Pay Applications,” and Question 36 for damages compensating Mid-Main for Traveler's failure to comply with its performance bond.

6.   Raised in Patriot's reply brief, which was filed after Mid-Main and Travelers settled.

7.   Because Travelers and Mid-Main settled their dispute and dismissed their claims against each other, this list does not include Travelers' issues that solely involved Mid-Main, which are now moot.

8.   That a contract contains unit prices does not mean that it necessarily includes those costs “in addition to” a lump sum component. See Venable's Constr. Inc. v. Aspen Midstream, LLC, ––– S.W.3d ––––, 2025 WL 3768331, at *8 (Tex. App.—Houston [1st Dist.] Dec. 31, 2025, no pet.).

9.   There, the jury was instructed that “a party wrongfully interferes with a contract when there was a reasonable probability that Roell Vento would have entered into contractual relationships and any [defendant] intentionally prevented the contractual relationship from occurring with the purpose of harming Roell Vento.” Id. (emphasis added).

10.   It is undisputed that the Patriot Contract provided: “With each Application for Payment, and as a condition to such payment by [Mid-Main], [Patriot] shall submit ․ [a] signed and notarized Affidavit Supporting Application for Progress Payment.”

11.   Friedman does not contend that the proximate cause language in Question 35 differs from the “loss or damage resulting from” language in section 53.085(e).

12.   Friedman argues that Mid-Main wrongly suggested that Question 35 “relates to the lien that Mr. Friedman filed.” Counsel argued:Question 35. This relates to the lien that Mr. Friedman filed where he said — this is Plaintiff's Exhibit 179 — where he says, “According to the contract and after giving all just due offsets, I'm owed millions of dollars.” Okay. And he based that on these false and inaccurate attestations in Pay Applications 32 and 33․ (Emphasis added).Thus, counsel's argument ties the jury question to the inaccurate statements in the pay applications, rather than to the lien itself, contrary to Friedman's assertions.

13.   Mid-Main repeatedly referred to Travelers as Patriot's or Friedman's “wingman” throughout trial.

14.   In Alonzo, the plaintiffs, Christine John and Christopher Lewis, were injured in a rear-end collision involving a tractor-trailer driven by Roberto Alonzo. Id. at 912. Alonzo and his employer conceded liability for his negligence, which left noneconomic and exemplary damages the only issues at trial. Id. The jury awarded $12 million to John and $450,000 to Lewis for physical pain and mental anguish, but did not unanimously agree on exemplary damages. Id. Alonzo and his employer sought a new trial in part on the ground that plaintiffs' counsel inflamed the jury with an unprovoked accusation of race and gender bias. Id.During voir dire, plaintiffs' counsel “introduced the concept of race and gender bias when questioning potential jurors about their willingness to award as much as $12 million for ‘invisible’ injuries,” seeking to ensure that jurors would not discount an award for a woman and asking the jurors if it mattered that his client was African-American. Id. at 913. Although the court noted that there was nothing inherently improper about that line of questioning, “plaintiff's counsel circled back to the topic during closing argument with a pointed attack on opposing counsel.” Id. Plaintiffs' counsel predicted that defense counsel would ask to limit damages to only four or five million, based ostensibly on the plaintiff's race and gender. Counsel urged the jury to reject that “discount.” But after defendants' counsel suggested the jury award John no more than $250,000, plaintiff's counsel argued during rebuttal: “We don't want the 4 or 5 million dollars. And now we certainly don't want this $250,000․ That's not fair. Because it's a woman, she should get less money? Because she's African American, she should get less money? No. We're going to fight because we believe in the jury system.” Id. at 914 (emphasis in original). The supreme court held that this argument was an incurable appeal to racial prejudice, inducing the jury to consider a party's race as a factor in reaching its decision. Id.

15.   As noted, the trial court reduced the exemplary damages award to $1.696 million in the final judgment.

16.   Hyperbole is an accepted rhetorical technique for closing argument. PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied); see also Reese, 584 S.W.2d at 838.

17.   Travelers and Mid-Main have resolved the claims between them, but Travelers remains a party due to HERC's and Scaffold's claims against it.

Kevin Jewell, Justice